Stuart Showalter Law Blog: Deny parenting time, lose custody

I have long fought for and end to government discrimination including gender discrimination. Still, this year we have those involved in the family court system expressing a gender bias or blatant discrimination. I therefore applaud the Morgan Circuit Court for a custody decision that was truly based upon the best interest of the child and not in maintaining a gender bias.

This case involves a paternity action wherein the father and mother were cohabiting after the mother divorced and they subsequently had a child together. Custody was transfered to the Father upon his subsequent Petition. Mother appealed.

The 2006 Decree of Paternity ordered that Mother have primary physical custody, that the parties share joint legal custody, and that Father pay Mother $100 per week in child support. Father's parenting time consisted of weekly Wednesday overnights, every other weekend from 6:00 p.m. Friday until 6:00 p.m. Sunday, Tuesday overnights following Mother's weekends, and one week of extended visitation “every six months pending further agreement . . . of the court.”

Initially Mother and Father had a good relationship in regards to parenting time with their child. Father was able to have their daughter, Destiny, for up to four days at a time consistent with his work schedule. When mother became aware that Father was dating Karyn parenting time for Father was restricted to that provided by the decree.

Based upon this, denial or court ordered parenting time on four or five occasions and some other actions, Father filed a Verified Petition for Contempt Citation and for Modification of Prior Order for Custody and Support .

Subsequently, Mother informed Father that she and Destiny were going to move in with her ex-husband but that “they would not be there long, that they had to live there for three weeks because the apartment complex she was trying to move into . . . was not ready yet . . . .” However, around the time Father filed the custody modification petition , Mother told Father that she was going to make that house her permanent residence because Father was “going to fight for custody of Destiny.”

At the hearing, Father testified that Mother had denied him parenting time “usually whenever [Mother is] upset with [Father].” Father testified that at times Mother had allowed greater access to Destiny than what was allowed in the paternity order, but that it's always been directly related to how their relationship is. Father testified that he and Mother had an arrangement that Father could pick Destiny up at 5:30 p.m. instead of 6:00 p.m. per the paternity decree because that was a more convenient time for Father, but if they were arguing for any reason he had to hang out until six o'clock to pick-up Destiny.

Father also made tape recordings of conversations with the Mother in which she made angry outburst at him while in the presence of Destiny.

After the hearing the court made Findings and Conclusions pursuant to TR52. The Court found;
"As described and shown by the evidence, the mother appears very quick to anger, and has fallen into a pattern [sic] being quick to use the child (and access to the child) as a reward and punishment system directed toward the father. This is without question a damaging and unhealthy tactic, and past episodes have directly involved and distressed the child."

"Mother has also exhibited a strong and lasting resentment toward the father's fiancé/wife that has consistently interfered with constructive co-parenting, created conflict and directly and adversely affected the child. None of these concerns appear to exist within the father's household. This factor strongly favors the father."

The court found and ruled as follows:
"A. The court finds that there has been a substantial change in the factors for consideration per Ind. Code § 31-17-2-8, after consideration of all those factors per Ind. Code § 31-17-2-21(b).
Specifically the court finds changes in considerations 5 and 6 as per above.
B. The court finds that a change of custody would be in the child's best interests. . . . "

Indiana Code § 31-17-2-8 factors include;
"(5) The child's adjustment to home, school, and community. (6) The mental and physical health of all individuals involved."

In this case Mother didn't like it that Father had a new romantic interest. She was hostile towards that woman and Father because of this. Her hostilities were expressed in front of their child. She also used the child as a pawn in rewarding or punishing Father by allowing or denying parenting time. This clearly is not in the best interest of the child.

I have often encountered men who didn't want to seek to modify support payments or enforce some provisions of the Indiana Parenting Time Guidelines from fear of upsetting the mother and having parenting time reduced to the Guideline amount or restricted altogether.

At least in one court, as this case shows, that fear is unfounded and can actually lead to a modification of custody. I also recently received an Order in a case I was advising on that Father's parenting time was modified upward based upon similar circumstances.

Indiana has long been known as a "mothers only state" but just as the tide is shifting throughout the country so is it in Indiana.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Make a suggestion for me to write about.

Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.

Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.